Copyright 2023 Ceterus All Rights Reserved
THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY EXECUTING THIS AGREEMENT OR AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO AN ORDER FORM AND THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE ORDER FORM AND THESE TERMS OF SERVICE, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS OF SERVICE, YOU MUST NOT ACCEPT THE ORDER FORM AND THIS AGREEMENT AND MAY NOT USE THE SERVICES.
This Agreement is subject to revision. If We make any substantial changes, We will notify You in accordance with Section 16.1. Any changes to this Agreement will be effective upon the earlier of ten (10) calendar days following dispatch of an email notice to You (if applicable) or Your next use of the Services. These changes are effective immediately to new Users of Our Services. You are responsible for providing Us with Your most current e-mail address. In the event that the last e-mail address that You have provided Us is not valid, or for any reason is not capable of delivering to You the notice described above, Our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Continued use of Our Services following notice of such changes shall indicate Your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
This Agreement was last updated on November 2, 2018. It is effective between You and Us as of the earlier of: (a) the date You accept this Agreement or (b) the date You first access or otherwise use the Services.
“Additional Services” means any Services in excess of the monthly Service plan(s) specified in an Order Form including, without limitation, Services in excess of included hourly quantities for Service plans specified in the Order Form, hourly consulting Services not included in the monthly Service plans specified in the Order Form or other add-on Services specified in an Order Form.
“Additional Service Fees” mean the fees incurred for Additional Services.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means these Terms of Service.
“Beta Services” means certain features, technologies, and services that are not generally available to customers, as updated from time to time.
“Code” means the Internal Revenue Code of 1986, as amended.
“Disruption Event” means either: (a) a User’s use of the Services in violation of this Agreement, which could disrupt: (i) the Services; (ii) other customer’s use of the Services; or (iii) Our network or servers used to provide the Services; or (b) unauthorized third-party access to the Services.
“Generic Reports” means reports that may include Your Data in an anonymous, generic, de-identified format aggregated with other data not constituting Your Data solely and exclusively for analyzing customer needs, improving Our services, or providing benchmark data to You and Our other customers.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Monthly Recurring Fees” are the monthly fees for the monthly Service plans(s) identified in an Order Form.
“Non-Ceterus Applications” means a web-based or offline service or software application that is provided by You or a third party and interoperates with one or more of the Services.
“Order Form” means an online confirmation page or an ordering document specifying the Services to be provided hereunder (which may be in the form of an email message confirmed by You) that is entered into between You and Us or any of Our Affiliates or Resellers, including any addenda and supplements thereto. You acknowledge and agree that an Order Form will be established when (a) We send You an e-mail specifying the terms of Services and/or Additional Services, and (B) you send Us a reply e-mail indicating Your acceptance of the specified terms of Service and/or Additional Services. You further acknowledge and agree that such e-mail exchange is intended to form a contract between You and Us under the terms of the South Carolina Uniform Electronic Transactions Act and the Electronic Signatures in Global and National Commerce Act.
“Reseller” means one of Our preferred partner resellers through whom You purchase the Services.
“Services” means the products and services that are ordered by You under an Order Form and made available online by Us as described in the Order Form, including Additional Services. Services exclude Non-Ceterus Applications.
“Standard Bank and Payroll Set-up” means that You manage your business using (i) a single bank account associated to a single business, (ii) a single credit card which is used exclusively for business expenses, (iii) that your payroll provider offers online access to payroll reports with employees assigned to departments tracking allocations you use to report results.
“Subscription Term” means the period of time during which You are permitted to use the Services hereunder, as specified in the applicable Order Form and including all renewals or extensions thereof.
“Suspend” or “Suspension” means the immediate disabling of access to the Services, or components of the Services, as applicable, to prevent further use of the Services.
“Tax Advice” means our investigation to confirm or verify any facts described in any letter, memorandum, or opinion addressing the application of tax laws to a particular situation.
“User” means an individual who is authorized by You to use one or more of the Services, for whom You have ordered the Services, and to whom You (or We at Your request) have supplied a user identification and password. Users may include, for example, Your employees, consultants, contractors and agents.
“We” “Us” or “Our” means Ceterus, Inc.
“You” or “Your” means the person accepting this Agreement, or, if applicable, the company or other legal entity for which you are accepting this Agreement.
“Your Data” means electronic data and information submitted by or for You to the Services or collected and processed by or for You as a result of your use of the Services. Your Data includes “Your Reports”.
“Your Financial Services” means your accounting, point-of-sale, payroll and/or banking systems that must be electronically connected to Our systems for your use of the Services. Your Financial Services are Non-Ceterus Services.
“Your Reports” means reports regarding and/or incorporating Your Data generated, transmitted or displayed via the Services, but excluding Generic Reports. Your Reports included financial statements, tax returns, benchmark analysis and other documentation presenting or summarizing Your Data.
2. OUR RESPONSIBILITIES
2.1 Provision of Services. We will (a) make the Services available to You pursuant to this Agreement and the applicable Order Forms, (b) provide Our standard support for the Services to You at no additional charge, and/or upgraded support if purchased. Notwithstanding the foregoing, the Services may not be available due to: (i) planned downtime (of which We shall give at least 8 hours electronic notice and which We shall schedule to the extent practicable during the weekend hours), and (ii) circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service or other provider failure or delay, Non-Ceterus Application failure or delay or denial of service attack. We reserve the right to make changes to the Services at any time and from time to time, provided, however, that We will not materially decrease the functionality of the Services during a Service Term. If We make a material change to the Services, we will notify you of such change by e-mail, notification or a banner at www.ceterus.com/terms.
2.2. Integration with Your Financial Services. You agree to provide Us with remote and or online access, when necessary, to Your Financial Services. You are solely responsible for the adequacy of the security measures for remote access users of Your Financial Services. You represent and warrant that Your use of the Services will not violate any agreement or terms between you and the providers of Your Financial Services. Fees quoted in Order Forms assume You utilize Standard Bank and Payroll Set-up, and that you will continue to do so during the Subscription Term. To the extent that this is not the case, we reserve the right to revoke our acceptance of the Order Form or to charge Additional Service Fees for time spent manually processing Your Data stored within Your Financial Services.
2.4. Beta Services. From time to time, We may invite You to try Beta Services at no charge. You may accept or decline any such trial in Your sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the date that a version of the Beta Services becomes generally available. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.
3. YOUR RESPONSIBILITIES. In order for Us to provide the Services in an effective manner, You must cooperate with Us and provide Us with any information that We request, all on a timely basis. You must cause Your employees and contractors to cooperate fully and timely with Us. You must designate for Us a person authorized to make or obtain all management decisions with respect to Our services on a timely basis. We will rely in good faith on all information and management decisions communicated to Us by You, Your employees, or Your contractors, and We will not be responsible for any loss or other obligation arising from Our reliance. Any failure to fulfill Your responsibilities will be grounds for Our suspending or terminating the applicable Services or other Services or the applicable Order Form. While We will provide You with advice concerning tax return reporting and the tax consequences of certain transactions, You will retain all authority and responsibility for any decisions based on Our advice.
4. USE OF SERVICES; AFFILIATES
4.1. Usage Limits. Some of the Services are subject to monthly usage limits, including, for example, hours for information gathering and clarification and consulting hours specified in Order Forms as included in the monthly Service fee. Additional Services can be purchased at the hourly rates set forth in an Order Form or, if applicable rates are not set forth in an Order Form, at Our hourly rates for the particular Additional Service at the time utilized. If, You require significant quantities of Additional Services, We will present you with an additional Order Form setting forth the rates for such Additional Services. You commit to pay for all Additional Services in accordance with Section 9 (Fees and Payment for Services).
4.2. Your Responsibilities. You will (a) be responsible for Users’ compliance with this Agreement and for all activities that occur through your Users’ use of Our Services, (b) be responsible for the accuracy, quality and legality of Your Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify Us promptly of any such unauthorized access or use, (d) use Services only in accordance with this Agreement and applicable laws and government regulations, (e) comply with terms of service of Non-Ceterus Applications with which You use Services and (f) respond to questions and complaints from Users or third parties relating to Your or Your Users’ use of the Services and use commercially reasonable efforts to resolve support issues before escalating them to Us.
4.3. Usage Restrictions. You will not (a) make any Service available to, or use any Service for the benefit of, anyone other than You or Your Users, (b) sell, resell, license, sublicense, distribute, rent or lease any Service, or include any Service in a service bureau or outsourcing offering, (c) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or its related systems or networks, (g) permit direct or indirect access to or use of any Service in a way that circumvents a contractual usage limit, (h) copy a Service or any part, feature, function or user interface thereof, (i) frame or mirror any part of any Service, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in this Agreement, (j) access any Service in order to build a competitive product or service, or (k) reverse engineer any Service (to the extent such restriction is permitted by law).
4.5. Suspension. If We become aware of a User’s violation of this Agreement, then We may specifically request that You Suspend that User’s use of the Services. If You fail to comply with Our request to Suspend a User’s use of the Services, then We may do so. The duration of any Suspension by Us will be until the applicable User has cured the breach that caused the Suspension. Notwithstanding the foregoing, if there is a Disruption Event, then We may automatically Suspend the offending use. Suspension will be to the minimum extent and of the minimum duration required to prevent or terminate the Disruption Event. If We Suspend a User’s use of the Services for any reason without prior notice to You, then at Your request, We will provide You with the reason for the Suspension as soon as is reasonably possible.
5. TERMS REGARDING TAX RETURN PREPARATION
5.1. Scope of Return Preparation Services. Our Services in preparing Your tax returns are limited to tax return preparation, and our preparation of a return should not be viewed as assurance that any particular reported position is correct. Our tax preparation services include an opportunity for You to clarify with our preparer issues related to your returns. You may access this service for up to 10 minutes per month; any unused time will expire at month end. If We become aware of a return position for which We believe a penalty under the Code is likely to apply, We will bring that position to your attention. If You would like us to advise You concerning any specific matter on Your tax return, please contact us to discuss expanding the scope of our Services. Any Tax Advice rendered in connection with the preparation of any tax return is subject to the provisions described under Section 6 (Terms Regarding Tax Advice) below. We will prepare Your tax returns and other tax related filings and documents and schedules as agreed in an Order Form. It is Your responsibility to carefully examine and approve the completed tax returns before signing and mailing them to the tax authorities.
5.2. Reliance on Information. We will rely on the financial statements or other financial information that You provide. We will not investigate or verify any facts underlying the transactions reported on Your tax return. If the actual facts differ from the facts represented to or understood by Us, or if there are related facts of which we are not aware, the reporting of the transactions could be materially different than that reported on the returns prepared by Us.
5.3. Our and Your Respective Responsibility for Accuracy. We will exercise due professional care and judgment to include all required information in Your tax returns. The Code provides that by signing Your returns, you are verifying that they are true, correct and complete. Accordingly, You should review each tax return carefully before signing it, and bring any questionable items or omissions to Our attention.
5.4. Jurisdictions for Returns. We will prepare tax returns for those federal, state, and local jurisdictions requested by You in writing. We will advise You if We believe, based on the information that You provide Us, that a tax return should be filed in any other jurisdiction, but We will not prepare any such tax return without Your approval of the expansion of our scope of Services.
5.5. Level of Assurance and Return Disclosures. The Code prohibits tax preparers from signing any tax return known to report any position (i) that is not supported by “substantial authority” unless certain disclosures are made concerning the position or (ii) attributable to certain “tax shelters” that the preparer does not reasonably believe is more likely than not correct. Because of the limited scope of analysis in evaluating a reporting position, a conclusion that disclosure is not required to enable Us to sign a return may not be sufficient to avoid the application of tax penalties under the Code. Except as expressly agreed separately in writing, We will not review any reporting position or perform any tax research for the purpose of either (i) determining whether a position can be reported without disclosure or (ii) determining whether tax penalties may apply. If You wish to report a position without disclosure on the return, or if You are concerned about the potential application of tax penalties, please contact Us to discuss expanding the scope of Our Services to include rendering Tax Advice intended to address your concerns.
5.6. Disclosure of Reportable Transactions. The Code and certain state laws require that you disclose on Your tax return certain “reportable transactions” or “listed transactions.” There are significant financial penalties for failure to disclose these transactions, and these penalties may apply even if the transaction does not lead to an understatement of tax. Our tax return preparation services do not include any investigation to evaluate whether there are any reportable transactions that are required to be disclosed on Your returns, but we will advise you if we conclude that any such disclosure is required. If You would like us to specifically review any potentially “reportable transaction” or “listed transaction,” please contact Us to discuss expanding the scope of Our services.
5.7. Unclear Tax Laws or Conflicting Interpretations. There may be instances where the tax law is unclear, or where there may be conflicts between the taxing authorities’ interpretations of the law and other supportable positions. In those instances, We will outline each of the reasonable alternative courses of action, including the risks and consequences of each such alternative. In the end, We will adopt, on your behalf, the alternative You select after having considered the information provided by Us.
5.8. Reasonable Beliefs. Without disclosure in the return itself of the specific position taken on a given issue, We must have a reasonable belief that the position(s) satisfies the substantial authority standard and that the position will be held to be the correct position upon examination by taxing authorities. If We do not have that reasonable belief, it must be satisfied that there is at least a reasonable basis for the position, and in such a case the position must be formally disclosed on Form 8275 or 8275-R, which form would be filed as part of the return. If We do not believe there is a reasonable basis for the position, either the position cannot be taken or the return will not be signed.
5.9. Penalties and Interest. The law provides various penalties and interest that may be imposed when taxpayers underestimate their tax liability. You acknowledge and agree that any such understated tax, and any imposed interest and penalties, are Your sole responsibility.
5.10 Foreign Accounts. Note that any person or entity subject to the jurisdiction of the United States (includes individuals, corporations, partnerships, trusts, and estates) having a financial interest in, or signature or other authority over, bank accounts, securities, or other financial accounts having a value exceeding $10,000 in a foreign country, shall report such a relationship. Although there are some limited exceptions, filing requirements also apply to taxpayers that have direct or indirect control over a foreign or domestic entity with foreign financial accounts, even if the taxpayer does not have foreign account(s). For example, a corporate-owned foreign account would require filings by the corporation and by the individual corporate officers with signature authority. Failure to disclose the required information to the U.S. Department of the Treasury may result in substantial civil and/or criminal penalties. If You have a financial interest in any foreign accounts, You are responsible for providing Us with all the information necessary to prepare Form TD-F-90-22.1 required by the U.S. Department of the Treasury on or before June 30th of each tax year. If You do not provide us with information regarding any interest in a foreign account, We will not be able to prepare any of the required disclosure statements.
5.11. Review. Your returns may be selected for review by one or more taxing authorities. Any proposed adjustments by the examining agent are subject to certain rights of appeal. In the event of such government tax examination, We will be available upon Your written request to represent You during the examination and/or during any appeal. Any such representation will be the subject of, and governed by, a separate Order Form, the Agreement and any additional terms and conditions as agreed in writing between the parties.
5.12. Substantiation. We rely on You for compliance with all Internal Revenue Service substantiation requirements. We will not be responsible for the disallowance of doubtful deductions or inadequately supported deductions, nor any resulting additional tax, penalties and interest. In the event We or You are assessed additional tax, penalties and interest due to Our reliance on inaccurate, incomplete or misleading information provided to Us (with or without Your knowledge or intent). You will indemnify and defend Us and hold Us harmless as to any additional tax, penalties and interest.
5.13. Tax Fees. Fees (whether Monthly Recurring Fees or Additional Service Fees) quoted, assessed and/or collected for Our Services to prepare Your tax returns are based on the assumption that Your circumstances are substantially similar to Our average customer. As We work to prepare Your tax return, We may find the need to assess Additional Service Fees based on Your specific circumstances. You are under no obligation to pay such Additional Service Fees and are, in the alternative, entitled to terminate that component of the Services and receive a full refund for any fees paid exclusively for the affected Services that have not yet been provided.
6. TERMS REGARDING TAX ADVICE
6.1. Limitations on Oral, Messaging and Email Communication. We may discuss with You Our views regarding the tax treatment of certain items. We may also provide You with tax information in the body of an email. Any advice or information delivered orally or in the body of an email (as opposed to a memorandum delivered as an email attachment) will be based upon limited tax research and limited discussion and analysis of the underlying facts. Additional research or more complete review of the facts could affect Our analysis and conclusions. Because of these limitations and the related risks, it may not be appropriate to proceed with any transaction or any tax return reporting position solely on the basis of any oral, messaging or email communication. You accept all responsibility for any loss, cost, or expenses resulting from Your decision (i) not to have Us perform the research and analysis necessary to reach a more definitive conclusion and (ii) to instead rely on an oral or email communication. The limitation in this Section 6.1 will not apply to an item of written Tax Advice that is delivered to you as a document attached to an email.
6.2. Facts and Assumptions. Our Tax Advice will be limited to the investigation described in the body of the Tax Advice, and we will rely on the assumptions and representations described in the Tax Advice. Any change in or addition to these facts, assumptions, or representations could materially and adversely affect Our analysis and conclusions. If You for any reason believe that any facts, assumptions, or representations in any Tax Advice are incorrect or incomplete, You must notify us immediately to discuss the impact on Our analysis and conclusions. You should not rely upon any item of Tax Advice that is based on facts, assumptions, or representations that You believe to be incorrect or incomplete.
6.3. Applicable Law. Unless expressly stated in our Tax Advice, our analysis and conclusions will relate solely to federal income tax consequences under the Code as of the date of our Tax Advice. If You would like us to address tax consequences to You under any other applicable tax law, please contact Us to discuss expanding the scope of our Services.
6.4. Issues Addressed. Each item of Tax Advice will be limited to advice concerning the tax issues described in the Tax Advice, and it may not consider all of the issues that may arise in connection with the transaction. Except as expressly stated in an item of Tax Advice, Our advice is not an endorsement of any particular transaction structure, nor is it a recommendation that any addressee proceed with the transaction structure described in the Tax Advice.
6.5. Reportable Transactions. As noted earlier, the Code and certain state laws require that You disclose on your tax return certain “reportable transactions” or “listed transactions.” We will not review any transaction to determine whether it is a “reportable transaction” or a “listed transaction” except as expressly provided in the Tax Advice. If you would like Us to review any transaction to determine whether it is a “reportable transaction” or “listed transaction,” please contact Us to discuss expanding the scope of our Services.
6.6. Level of Assurance for Tax Advice; No Guarantee. Many areas of tax law are unclear, and the application of the tax law to any particular facts may be subject to more than one interpretation. Our Tax Advice will be based upon our interpretation of applicable law and regulations, and certain case and ruling authority as of the date of the Tax Advice. The level of assurance for any particular item of Tax Advice will depend on the underlying facts, the clarity of applicable law, regulations, rulings, and court cases, and the extent of factual due diligence and tax research performed. The conclusions in Our Tax Advice will be based on our good faith belief that they meet the level of assurance stated in the Tax Advice. Obtaining Tax Advice at a particular level of assurance may in some cases provide a defense to certain tax penalties, but You should not assume that an item of Tax Advice will offer You protection from penalties except as expressly stated in the Tax Advice. Our analysis and conclusions will be based upon Our professional judgment, will not be a guarantee of the ultimate tax consequences of the transactions described in the Tax Advice, and will not be binding on the IRS or any tax authority, or any court. If You would like greater certainty regarding the tax treatment of any particular transaction, please contact Us to discuss the possibility of obtaining a ruling from the appropriate tax authority.
6.7. Reliance and Distribution. Each item of Tax Advice is rendered only for the benefit of the named addressee(s), and does not address the tax consequences to any other person or entity that is not an addressee. No person or entity other than the named addressee(s) may rely on the Tax Advice. To avoid confusion regarding matters of reliance, Our Tax Advice may not be delivered to any other party unless You advise the recipient of these limitations on reliance. Unless expressly provided in an item of Tax Advice, but subject to the limitation in the preceding sentence, You are free to share the Tax Advice with any third party. You may deliver a copy of any Tax Advice to the IRS or any tax authority for the purpose of demonstrating good faith and reliance on the analysis and conclusions expressed therein. You should be aware that the delivery of any item of Tax Advice to a third party may act as a waiver of any otherwise available claim of privilege. Before delivering an item of Tax Advice to a third party, We recommend that You consult with legal counsel to assess the matters relating to claims of privilege.
7. TERMS APPLICABLE TO ALL TAX AND 1099 SERVICES
7.1. Scope of Services. Our services will be limited to the Services specified in an Order Form. Services in providing Tax Advice or in preparing a tax return do not include representation in the event of an examination by the IRS or other tax authorities. If you need tax services beyond those specifically described in an Order Form, these Additional Services will require execution of an additional Order Form. Our agreement to provide Services for one engagement does not obligate Us to accept any other engagement.
7.2. Changes in Law. Subsequent changes to applicable law or regulations, or the issuance of new case or ruling authority, could materially and adversely affect the analysis and conclusions in an item of Tax Advice or a position reported on a tax return. Neither the delivery of any Tax Advice nor the preparation of a tax return is an undertaking on Our part to advise you of any changes in law.
7.3. Disclaimer of Legal and Investment Advice. Our Services under any Order Form and this Agreement do not constitute legal or investment advice. We recommend that You retain competent legal counsel and investment advisers.
7.4. Record Retention. Notwithstanding the terms of Section 15.5 of the Agreement, Federal tax law requires Us to retain either copies of tax returns We prepare or specified information relating to those returns, as well as certain other documents related to Our tax Services for varying time periods. Our current policy (which we may revise at any time and in our sole discretion) is to retain copies of tax returns and certain related workpapers for seven years after the return is filed, subject to casualties beyond Our control. We provide our clients with a file copy of each federal income tax return for which We are a signing preparer, and We recommend that You retain this copy for at least seven years. Although taxpayers are not required to retain their tax records for longer than Our seven-year recommendation, there are situations in which tax returns older than seven years may contain information useful in future tax planning. For example, prior year returns may contain information relating to the basis of assets for gain/loss calculations, and corporations may use tax return information in calculating “earnings and profits” for corporate tax planning. We recommend that taxpayers consider maintaining separate accounting records or work papers with this information. If You would like us to assist you in developing these separate records, please call Us to discuss the scope of such a project. It may also be advisable to retain accounting or tax records for longer than seven years for reasons unrelated to taxes. Decisions regarding document retention may involve a variety of legal considerations (e.g., statutes of limitations, rules of evidence), so You may wish to consult your legal counsel to address these legal considerations.
7.5. Newsletters and Similar Communications. We may from time to time send newsletters, mails, explanations of tax law developments, or similar communications to selected clients, former clients, or other interested parties. These communications are of a general nature and are not definitive advice. We do not send all such communications to all clients, former clients, or interested parties. These newsletters do not establish or continue a client relationship with any person, and they do not constitute an undertaking on Our part to monitor tax or other issues for you or for any other parties.
8. NON-CETERUS PROVIDERS
8.1. Acquisition of Non-Ceterus Products and Services. We or third parties may make available third-party products or services, including, for example, Non-Ceterus Applications and implementation and other consulting services. Any acquisition by You of such non-Ceterus Applications, and any exchange of data between You and any Non-Ceterus provider, is solely between You and the applicable Non-Ceterus provider. We do not warrant or support Non-Ceterus Applications or other Non-Ceterus products or services, whether or not they are designated by Us.
8.2. Non-Ceterus Applications and Your Data. If You install or enable a Non-Ceterus Application for use with a Service, You grant Us permission to allow the provider of that Non-Ceterus Application to access Your Data as required for the interoperation of that Non-Ceterus Application with the Service. We are not responsible for any disclosure, modification or deletion of Your Data resulting from access by a Non-Ceterus Application.
8.3. Integration with Non-Ceterus Applications. The Services may contain features designed to interoperate with Non-Ceterus Applications. To use such features, You may be required to obtain access to Non-Ceterus Applications from their providers, and may be required to grant Us access to Your account(s) on the Non-Ceterus Applications. If the provider of a Non-Ceterus Application ceases to make the Non-Ceterus Application available for interoperation with the corresponding Service features on reasonable terms, We may cease providing those Service features without entitling You to any refund, credit, or other compensation.
9. FEES AND PAYMENT FOR SERVICES
9.1. Payment By ACH. Unless We agree otherwise, all payments will be made via automatic clearing house (ACH) processing. You authorize Us to collect Monthly Recurring Fees and Additional Service Fees incurred by You by ACH through accounts you designate. You will provide Us with valid and updated banking information, as may be updated from time to time.
9.2. Payment by Credit Card. If We agree to accept payment by credit card, You will provide Us with valid and updated credit card information and You authorize Us to charge your credit card for all Monthly Recurring Fees and Additional Service Fees incurred by You.
9.3. Monthly Recurring Fees. You will pay all Monthly Recurring Fees specified in Order Forms monthly in advance commencing on the effective date of this Agreement. Except as otherwise specified herein or in an Order Form, (i) Monthly Recurring Fees are based on the Service purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) plans purchased cannot be decreased during the relevant Subscription Term. You will be responsible for any payments owed but not paid by any of your Affiliates ordering Services hereunder.
9.4. Additional Service Fees. You will pay all Additional Service Fees upon completion of the Services unless other payment terms are agreed between You and Us.
9.5. Pricing Changes. You acknowledge and agree that, notwithstanding the pricing set forth in any Order Form, We may change pricing for the Services upon thirty (30) days’ prior notice to You, which notice may be provided to your e-mail on file with Us (a “Pricing Change Notice”). If You do not agree to such price increase, You may terminate Your Services by providing a termination notice to Us no more than sixty (60) days’ days after the date of a Price Change Notice.
9.6. Payment by Invoice. If an Order Form specifies that payment will be by a method other than ACH or credit card, We will invoice You for Monthly Recurring Fees in advance and for Additional Service Fees following the month in which such Additional Service Fees are incurred. Unless otherwise stated in the Order Form, invoiced charges are due upon Your receipt of the applicable invoice. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
9.7. Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
9.8. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our Services is overdue, We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and Suspend Our Services to You until such amounts are paid in full. We will not give You prior notice before Suspending Services to You under this Section 9.8.
9.9. Payment Disputes. We will not exercise Our rights under Section 9.7 (Overdue Charges) or 9.8 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
9.10. Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 9.10, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
9.11. Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
9.12. Reseller Purchases. If You purchased the Services through a Reseller, all payment-related terms (including, but not limited to, pricing, invoicing, billing, payment methods, and late payment charges) will be set forth in Your agreement directly with such Reseller and such payment-related terms will supersede any conflicting terms set forth in this Section 9.
10. PROPRIETARY RIGHTS AND LICENSES
10.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all of Our right, title and interest in and to the Services, including all of Our related intellectual property rights. You reserve all of Your right, title and interest in Your Data, provided that We may use Your Data to create Generic Reports and as provided in Section 10.2 below. No rights are granted to You hereunder other than as expressly set forth herein.
10.3. License by You to Use Feedback. You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of the Services.
11.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the Services; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
11.2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, disclose Confidential Information of the Disclosing Party only to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 11.2.
11.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law or by the order of a court or similar judicial or administrative body to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
12. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
12.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
12.2. Our Warranties. We warrant that the Services will perform materially in accordance with the specifications set forth in the Order Form. For any breach of the above warranty, Your exclusive remedy and Our sole obligation is those described in Sections 15.3 (Termination) and 15.4 (Refund or Payment upon Termination).
12.3. Mutual Warranties. Each party warrants that it will comply with all laws and regulations applicable to its provision or use of the Services, as applicable.
12.4. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
13. MUTUAL INDEMNIFICATION
13.1. Indemnification by Us. We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that the use of the Services in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a court-approved settlement of, a Claim Against You, provided You (a) promptly give Us written notice of the Claim Against You, (b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion and at no cost to You (i) modify the Service so that it no longer infringes or misappropriates, without breaching Our warranties under Section 12.2 (Our Warranties), (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon thirty (30) days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from a Non-Ceterus Application or Your breach of this Agreement.
13.2. Indemnification by You. You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data, or Your use of any Service in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Us”), and will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us, provided We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (c) give You all reasonable assistance, at Your expense.
13.3. Exclusive Remedy. This Section 13 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 13.
14. LIMITATION OF LIABILITY
14.1. Limitation of Liability. NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT OR SERIES OF RELATED INCIDENTS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT OR SERIES OF RELATED INCIDENTS, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 10 (FEES AND PAYMENT FOR SERVICES). THE FOREGOING LIMITATION OF LIABILITY WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
14.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
14.3. Collective Liability. The provisions and limitations of this Section 14 will apply to You and all of your Affiliates purchasing Services hereunder in the aggregate, meaning Our liability to You and/or one or more of your Affiliates for an incident or series of related incidents, collectively, will be limited to the aggregate amount paid by You and Your Affiliates as set forth in this Section 14.
15. TERM AND TERMINATION
15.1. Term of Agreement. This Agreement commences on the date You first accept it and continues until all Subscription Terms hereunder have expired or have been terminated.
15.2. Term of Purchased Subscriptions. The Subscription Term shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring Subscription Term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant Subscription Term. The pricing during any automatic renewal term will be the same as that during the immediately prior term unless We have given You written notice of a pricing increase at least sixty (60) days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.
15.3. Termination. A party may terminate this Agreement (i) thirty (30) days after providing written notice to the other party of a material breach of its obligations under this Agreement if such breach remains uncured at the expiration of such 30-day period, (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, or (iii) upon ten (10) days’ written notice to the other party if the other party is in material breach of this Agreement more than two (2) times notwithstanding any cure of such breaches.
15.4. Refund or Payment upon Termination. If this Agreement is terminated by You in accordance with Section 15.3 (Termination), We will refund You any prepaid fees covering the remainder of the Subscription Term of all Order Forms after the effective date of termination. If this Agreement is terminated by Us in accordance with Section 15.3, You will pay any unpaid fees covering the remainder of the Subscription Term of all Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
15.5. Your Data Portability and Deletion. After the effective date of termination or expiration of this Agreement, We will provide an export file of all Data stored on Our systems (in a reasonably usable digital format) to You if You request such a file within thirty (30) business days after such expiration or termination. Thereafter, We will have no obligation to maintain or provide Your Data, and may, in Our sole discretion, delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control, unless legally prohibited.
15.6. Surviving Provisions. The Sections titled “Fees and Payment for Purchase Services,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Your Data Portability and Deletion,” “Notices, Governing Law and Jurisdiction,” and “General Provisions” will survive any termination or expiration of this Agreement.
16. NOTICES, GOVERNING LAW AND JURISDICTION
16.1. Manner of Giving Notice. All notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services system administrator designated by You, in writing, by like notice.
16.2. Agreement to Governing Law and Jurisdiction. Each party agrees that this Agreement is governed by and shall be construed in accordance with the laws of the State of South Carolina, in all respects, without regard to choice or conflicts of law rules, and that all disputes arising out of or relating to this Agreement are limited to the exclusive jurisdiction and venue of the state and federal courts located within Charleston County, South Carolina. Each party hereby consents to and waives any objections with respect to such jurisdiction and venue.
17. GENERAL PROVISIONS
17.1. Export Compliance. The Services, other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use any Service in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
17.2. Entire Agreement and Order of Precedence. This Agreement, including any Order Forms, is the entire agreement between You and Us regarding Your use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the waiver is to be asserted. No modification or amendment of any provision of an Order Form will be effective unless in writing and signed by the party against whom the waiver is to be asserted. The parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, and (2) this Agreement.
17.3. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or equity securities. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice.
17.4. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
17.5. Third-Party Beneficiaries. Our licensors shall have the benefit of Our rights and protections hereunder with respect to the applicable content. There are no other third-party beneficiaries under this Agreement.
17.6. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
17.7. Severability/Savings Clause. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect. In the event any provision herein violates a tax jurisdiction’s Standard of Conduct specifically applicable to a client, as to that client, such provision shall be (i) modified to the extent necessary to be in compliance with that specific standard, or (ii) rendered void if modifying the provision cannot result in compliance with the specifically applicable standard.
17.8. Equitable Relief. Nothing in this Agreement will limit either party’s ability to seek equitable relief.
17.9. Force Majeure. Except for payment obligations, neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party’s reasonable control.
17.10. Jury Trial Waiver. EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.
THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.